# Carraher v. Carraher

> The Superior Court of New York City · November 15, 1871 · 11 Abb. Pr. 338

URL: https://www.frixlaw.com/law-library/cases/6135886

## Case

- **Full name:** CARRAHER against CARRAHER
- **Court:** The Superior Court of New York City
- **Decided:** November 15, 1871
- **Citations:** 11 Abb. Pr. 338; 42 How. Pr. 458
- **Precedential status:** Published
- **Opinion:** Concurrence by Monell
- **Judges:** Freedman, Monell
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6135886

## Opinion text

Monell, J. (concurring).
Without questioning the power of the court to dismiss the appeal upon this motion, which it probably may do, if it will take the trouble to examine the judgment roll, to see if there is any error in it, the practice of entertaining motions of this nature is attended with so much inconvenience and labor, that it ought not to be followed, especially as there is another remedy quite as effectual and which is free from the objections above stated.
The respondent was right in having the “ case” declared abandoned. That left nothing but the judgment roll to be reviewed. But instead of moving to dismiss the appeal, he should have moved for an affirmance of the judgment, as provided in rules 49 and 50.
The practice under these rules is as follows: If the appellant fails to serve his case, or to have it settled, or filed, within the time prescribed by the rules, the respondent should apply, on notice, to the special term, to have the case declared abandoned. He should then apply for an order to put the case on the general term calendar; and on an affidavit of the non-service of the appeal papers and on notice to the appellant, for the earliest motion day in term, move to strike the cause from the calendar and for judgment of affirmance.
This practice is simple and effectual, and spares the court the labor of examining, upon a motion, a manuscript judgment roll, to see if there are any questions arising upon it for review.
Motion denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6135886. Public record. Not legal advice.